Sunday, February 9, 2014

Mexican documentary 'Presumed Guilty' finds justice

In this still from the film 'Presumed Guilty,' Layda Negrete explains how lawyers will prove Antonio Zúñiga's innocence. (Lawyers with Cameras, 2009)

In the two years since its theatrical premiere, the Mexican documentary "Presumed Guilty" ("Presunto Culpable") has earned enough headlines to make any film publicist envious. The movie has been banned, disparaged, acclaimed, and the subject of multiple lawsuits. Along the way, it has broken every documentary box office record in Mexico. Now a series of judicial decisions in the past week suggests that, while the discussion it sparked will continue, the film's legal battles may be drawing to a close.

The documentary follows the efforts of the lawyers Roberto Hernández (the film's director) and Layda Negrete (its producer) to overturn the murder conviction and 20-year jail sentence of a young street vendor and aspiring rapper and break dancer named Antonio Zúñiga. Over the years shown in the film, leading up to his 2008 exoneration and release, Hernandez, Negrete, and Zúñiga's legal team reveal the flaws of a Mexican justice system that does not recognize the presumption of innocence and that not only failed the defendant but is inherently broken.

Weeks after the film's Mexican theatrical premiere in February, 2011 (it had previously been shown in international film festivals and on PBS in the United States, where it won an Emmy Award), one of the key figures in the documentary--Victor Daniel Reyes Bravo, a cousin of the murder victim and the eyewitness on whose dubious testimony the prosecution's entire case was based--sought an injunction against "Presumed Guilty" on the grounds that the filmmakers did not have authorization to show his image and sought damages for harm to his reputation. A Mexico City judge granted the injunction, resulting in the movie being yanked from theaters--at times mid-screening, Negrete told CPJ--throughout the country.

After an outcry, the ban was overturned and the film was later broadcast on television. But as the original case moved through the courts and subsequent ones were mounted against the film, another judge halted further theatrical, television, or DVD distribution in 2012. As of last week, Hernandez, Negrete, and the films' distributors faced three civil cases seeking more than three billion pesos ($US 225 million) in damages brought by the witness Reyes, José Manuel Ortega Saavedra (the police captain in charge of the case), and the family of the victim (who claimed the filmmakers used a photograph of the victim's corpse without permission).

In the meantime, the publicity surrounding the case had what for the litigants was most likely an unintended consequence: it made it a blockbuster. The movie's subject matter had already provoked intense interest at the time of its release. But the judge's decision to ban the film--an apparent act of censorship--made it a phenomenon. It topped Michael Moore's "Fahrenheit 9/11" to become the highest grossing documentary in Mexico's history. It beat the international feature films of the moment, "The King's Speech" and "Black Swan," at the box office--an event unheard of in Hollywood as well as Mexico. Those figures don't account for the millions of people who watched the film through unofficial means--either via the Internet (before it was taken down from YouTube because of controversial copyright claims) or on the pirated DVDs that spread like wildfirein the streets of Mexico. A recent survey solicited by the filmmakers showed that 36% of all Mexican adults had seen the film, Negrete told CPJ.

Aside from the heavy dose of scandal, the way in which the film revealed a dysfunctional system that the Mexican people, especially the poorest ones, have long suffered in silence, clearly struck a chord at a time when the country's drug wars were exploding and the breakdown of law and order was particularly evident. As lawyers, Hernández and Negrete had first studied the problem in a research capacity, conducting a study that revealed some infuriating statistics: 93% of defendants never see a judge (any court official can preside over a hearing); 93% of defendants are never shown their arrest warrant; 95% of verdicts are convictions; and 82% of convictions include no physical evidence. But the team's decision to turn to a camera and use journalistic and narrative tools resonated on a much grander scale.

Though "Presumed Guilty" includes emotional interviews with Zúñiga and his family, the documentary is at its most effective, and most damning, during the vérité sequences filming the court proceedings. Beyond showing every kind of procedural irregularity one can imagine in Zúñiga's retrial--missing evidence, police feeding information to witnesses--it's the exposure of the basic framework of the trial that reveal the Mexican justice system to be more than a little surreal. The climax of the film is a scene in which Zúñiga himself cross-examines the detective Saavedra from a caged holding pen in a process the Mexican system literally calls a "face-off." The sequence, in which the two are instructed to face each other, separated by only a few feet and the cell bars, while speaking in clipped phrases of no more than a handful of words at a time so the judge can repeat every word for the benefit of a stenographer, feels more like experimental theater than a courtroom drama.

The trial footage is what got the filmmakers into trouble. Negrete dismissed the litigants' objection to the use of their images without permission, noting to CPJ that they were filmed in public hearings and that, in the case of Saavedra, one of the plaintiffs is a public official. On January 30, a civil judge in Mexico City ruled in favor of the filmmakers in the cases brought by Reyes and the family of the victim. On Tuesday, in what the filmmakers described as a more sweeping verdict, another judge ruled that Hernández and Negrete had neither behaved illegally nor caused any harm to Saavedra in his case. Negrete said that the plaintiffs have a 12-day window in which they could appeal, but that in the light of the latest verdict, the viability of such cases is unlikely. "We're going to be counting those 12 days," Hernández told the daily Milenio.

Hernández told reporters he wants to bring the documentary back to theaters, if only for "symbolic reasons" and to "send a message" that "it wasn't worth it to censor a documentary." Negrete told CPJ that this was a precedent-breaking case in terms of freedom of expression and documentary film, which is only beginning to be considered in Mexico in terms of journalistic and legal protection. If international trends in journalism and filmmaking are any indication, with Internet documentary distribution ascendant and traditional media outlets' resources on the decline, it won't be the last time in Mexico that a documentary revealing government ineptitude or malfeasance is caught in judicial crosshairs. The box office results, however, might not be so easily replicated.

In CPJ's work documenting press freedom violations in Mexico in the past years, which have been the bloodiest on record for the press with over 50 journalists murdered or missing since 2007, legal battles have not usually been at the forefront. (The filmmakers have not been insulated from the threat of violence. Hernández has said he received phone calls threatening them and their children and Negrete acknowledged to CPJ the "personal risk" that came along with the project). But in many ways, the "Presumed Guilty" case reflects some of the systemic issues CPJ has examined from another angle. Violence against Mexican journalists goes unpunished and is repeated due in good part to a justice system that is flawed and resistant to change. The phenomenon of wrongful convictions is the other side of the coin to the problem of rampant impunity, which CPJ has documented as the main obstacle to combatting anti-press crimes.

Now that justice has been achieved for Zúñiga and for the film, Hernandez and Negrete have set their eyes on the broader goal of reforming the system, and have reasons to be both hopeful and despairing. The country is in the process of passing and implementing changes to the justice system intended to correct some of the very problems the documentary highlighted. Yet the version of these reforms that wasapproved on Wednesday included an article slipped in at the last moment that Negrete sees as a direct rebuke to the film: a prohibition on recording or filming trials.

Lawmakers may have come to the same conclusion regarding cameras as Negrete, who though she is finishing her doctorate in public policy at the University of Berkeley, California, has plans to work on a new documentary. "Presumed Guilty," taught her the "power that images have to communicate ideas," she told CPJ. "Numbers have almost no impact."

Sara Rafsky is research associate in CPJ's Americas program. A freelance journalist in South America and Southeast Asia, she was awarded a 2008 Fulbright Grant to research photojournalism and the Colombian armed conflict.